The minority of the House Committee argue that it is unconstitutional. This is clearly untenable. The cases relied upon by the minority are substantially cases from the various state courts where the right of the legislature to limit the power to punish for contempt has been denied, because the courts whose powers were thus sought to be restricted were constitutional courts possessing a constitutional jurisdiction, which could not be impaired by the legislature.

The federal constitution provides that the judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as Congress may from time to time ordain and establish. By the act of 1831, Congress limited the power of these inferior courts to punish for contempt and this act has stood without challenge from that time to this.

The minority of the committee observe that courts of equity grew up from the reason of the fact that they apply principles of justice and equity to the affairs of men, which may be better administered by a chancellor than by a jury and that this bill proposes to strip these courts of their true character as courts of equity and tie the hands of the chancellor in the administration. of justice by the introduction of the rules of practice which belong only to courts of law.

It is really amusing to one having any familiarity with the essential jurisdiction of equity to consider such a suggestion, as also the notion that the right to trial by jury depends merely on rules of practice.

It must be remembered that this bill, whatever the form of the proceeding, deals only with what are essentially criminal offences. In this field equity has no jurisdiction. Equity concerns itself with controversies relating to property. Little by little, under the modern dispensation, equity has encroached upon this field and taken jurisdiction, by bill for injunction in socalled strike cases, at the instance of railway companies and other large employers of labor and has exercised a jurisdiction essentially criminal.

The Constitution of the United States secures the right to trial by jury in all criminal prosecutions, both by the provisions

of the sixth amendment and by paragraph 3 of Section 2, Article 3. To say that the commission of an offence against the laws of the United States or at common law may be enjoined, and then the person charged with the commission of that offence may be tried upon information for contempt without a jury, is a clear evasion of these salutary constitutional guarantees. When such evasions are countenanced in the effort to reach those not actually guilty, but supposed to be constructively involved and at the instance of the strong and powerful and against the humbler orders of society, it is not remarkable that there is a loss of popular confidence in, and sympathy with, all the departments of government.

We thus keep the constitutional word of promise to the ear but break it to the hope. A great judge, Joseph P. Bradley, speaking for the Supreme Court of the United States in a historic case said, in declaring that constitutional provisions for the security of persons and property, should be liberally construed.

"A close and literal construction deprives them of half their efficacy and leads to depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be, obsta principiis."

The real question involved is whether trial by jury shall be retained in all essentially criminal prosecutions in the federal courts.

Where the law prohibits an act, the effect of enjoining against its commission is merely to change the procedure by which the guilt of the person charged with doing the act thus prohibited shall be ascertained and his punishment fixed. By enjoining against the commission of crime and then proceeding on a charge of contempt against those accused of committing it, the administration of the criminal law is transferred to equity and the right to trial by jury and all other guarantees of personal liberty, secured by the constitution, are pro hac vice destroyed. I can but regard the decisions, even by courts of the highest

authority, which sustain such a palpable evasion of the constitution as unsound and the effort in Congress to correct this judicial departure as timely.

That effort has met with the most determined opposition by large interests, which mistakenly, as I think, suppose this proposed legislation to be injurious to them.

It seems strange that in this day and generation it should. be necessary to enter into any defense of the time honored institution of trial by jury.

I cannot do better than to refer to the great address delivered before this Association on the 18th of August, 1898, by one of the acknowledged leaders of the American Bar, Mr. Joseph H. Choate of New York.

While his theme was trial by jury, incidentally he touched upon most of the questions relating to reform of the administration of the law, including particularly reform of procedure, with which this Association is now concerned; and he illuminated every topic to which he referred with the experience of a long and distinguished professional career and the matured wisdom and insight, which can only be acquired by such an experience. Referring to trial by jury he said (21 Am. Bar Reports, 290-291).

"I do not appeal to mere sentiment or popular prejudice in defence of this which I believe to be the best method yet devised for the determination of disputed questions of fact in the administration of justice. There is no need of such appeals-and if I were weak enough to resort to them, they would be wasted upon an assemblage of lawyers like this.

"The truth is, however, that the jury system is so fixed as an essential part of our political institutions; it has proved itself to be such an invaluable security for the enjoyment of life, liberty and property for so many centuries; it is so justly apprein the administration of justice; it is such an indispensable factor in educating them in their personal and civil rights; it affords such a school and training in the law to the profession itself; and is so embedded in our constitutions which, as I have said, declare that it shall remain forever inviolate, requiring a convention or an amendment to alter it-that there can be no substantial ground for fear that any of us will live to see the people consent to give

it up.

ciated as the best and perhaps the only known means of admitting the people to a share, and maintaining their wholesome interest,

"For the trial of persons charged with crimes,. I do not believe that any material alteration of its character will ever be thought of."

He is not singular in this opinion. His testimony might be corroborated by that of almost every great lawyer of extended experience and every judge who has sat long at nisi prius and possessed the confidence and respect of the Bar practicing before him.

One of the great lawyers of this country, in his day and generation, was Jeremiah S. Black of Pennsylvania. In a historic case, in the Supreme Court of the United States, where he always had respectful audience, he used this language:

66

We do not assert that the jury trial is an infallible mode of ascertaining truth. Like everything human, it has its imperfections. We only say that it is the best protection for innocence and the surest mode of punishing guilt that has yet been discovered. It has borne the test of a longer experience, and borne it better than any other legal institution that ever existed among men. England owes more of her freedom, her grandeur and her prosperity to that, than to all other causes put together. It has had the approbation not only of those who lived under it, but of great thinkers who looked at it calmly from a distance, and judged it impartially; Montesquieu and DeTocqueville speak of it with an admiration as rapturous as Coke and Blackstone." Wall, page 65.

I am not sure of the historical accuracy of another extract from his argument in the Milligan Case; but it is as follows:

"Alfred, the greatest of revolutionary heroes and the wisest monarch that ever sat on a throne, made the first use of his power, after the Saxons restored it, to re-establish their ancient laws. He had promised them that he would, and he was true to them because they had been true to him. But it was not easily done; the courts were opposed to it, for it limited their power—a kind of power that everybody covets-the power to punish without regard to law. He was obliged to hang forty-four judges in one year for refusing to give his subjects a trial by jury."

This would seem to be quite a rigorous application of the judicial recall.

Whether this apocryphal statement is altogether veracious or not, this at least is true; there is no place in our governmental system for the exercise of arbitrary power.

This is the power claimed and exercised by a single judge in punishing for contempt of court. It exists only ex necessitate and ought not to be extended. It ought not to be allowed in essentially criminal cases, for it is certain to be abused. Chesterfield has well said:

There have been misers of money but none of power.

The trial by jury is an integral and essential part of free government. Those who decry and distrust it do not believe in popular government. They distrust the people and would restrict rather than extend their participation in the administration of govern

ment.

That the proposition embodied in the proposed legislation is not of the dangerous character that its opponents claim is well illustrated by the fact that it merely conforms the law in the federal jurisdiction, in part at least, to the law of several of the states of this union; and that so lately as in 1911, the State of Massachusetts adopted a statute providing for trial by jury in proceedings for violation of an injuction if the violation charged is an act which also would be a crime. (36 Am. Bar Rep., 274.) A similar provision as to contempts in labor injunction cases is found in the amendments proposed to the Ohio constitution.

I will not stop to more than refer in this connection to the dangerous heresy intimated by a judge in Washington in the first opinion in the Bucks Stove Company case, that equity may enjoin a criminal libel. It is to be hoped that this will not be solemnly adjudicated by any court of authority in this country. The abuses possible under such an idea are quite sufficient to destroy the right of free publication and ultimately free speech. I deem it proper, however, to note in this connection an English statute of August 18, 1911, referred to in the annual bulletin of our excellent Comparative Law Bureau, issued July 1, 1912, and published under the direction of that accomplished and scholarly jurist, Governor Baldwin of Connecticut, which forbids making or publishing any false statements of fact in relation to the personal character or conduct of any candidate at, as I understand it, a municipal election, and that such publication